Gov. Shapiro, once Pa.'s top cop, backs inmate's appeal of life sentence for felony murder

Pennsylvania’s governor, once the state’s top lawman, is supporting an Allegheny County man’s appeal of his life sentence for second-degree murder without parole.

Gov. Josh Shapiro took the unusual step last week of filing a friend-of-the-court brief on behalf of inmate Derek Lee because he believes that the mandatory sentence for the crime is unconstitutional.

Shapiro, Pennsylvania’s former attorney general and member of the state Parole Board, argued that there should not be the same mandatory penalty for those convicted of first-degree murder — an intentional killing — and second-degree murder, which could apply to someone like a getaway driver involved in a felony but who does not commit violence.

“Both offenders should be punished severely, but they should not be punished the same,” Shapiro’s attorney wrote in the 30-page document submitted to the justices who are hearing Lee’s appeal. “This sentencing scheme is not only unjust; it is unconstitutional.”

Bret Grote, the legal director of the Abolitionist Law Center, which represents Lee, said that 17 briefs were submitted on Lee’s behalf, including by former state and federal prosecutors and judges, families of victims, and former state corrections officials.

But the one from Shapiro was unexpected.

“We welcome his willingness to share his perspective with the court,” Grote said on Wednesday.

Lee, 36, of Penn Hills was found guilty of second-degree murder in the 2014 shooting death of Leonard Butler, who was killed during a home invasion in Elliott, in Pittsburgh’s West End section.

However, the evidence at trial showed that it was Lee’s co-defendant, Paul Durham, who killed Butler, while Lee was upstairs.

Lee’s attorneys argued that there was no evidence presented that he had any intent to kill. Yet, under Pennsylvania law, he is serving a mandatory prison term of life without parole.

In February, the state Supreme Court agreed to hear Lee’s case and consider whether his sentence constitutes cruel and unusual punishment.

It is the first time Pennsylvania’s highest court will consider the issue.

No date for oral argument has yet been set.

Pennsylvania has 1,042 people incarcerated for second-degree murder, according to the state Department of Corrections. Louisiana is the only other state that makes life without parole mandatory for that charge.

In the brief, Shapiro cites corrections department statistics that show that about half of all people incarcerated in Pennsylvania for second-degree murder committed the actual killing.

“Notwithstanding the differences, a conviction for second-degree murder results in the same mandatory minimum sentence as those convicted of first-degree murder — life in prison without the possibility of parole,” the brief said. “This is simply wrong.”

The brief filed by Shapiro, who was attorney general from 2017 until becoming governor last year, also addressed potential fiscal savings.

According to the corrections department, of those serving life for second-degree murder, 381 are at least 50 years old and have served at least 30 years in prison.

The cost to house one inmate per year is $66,000, and for those who are elderly and infirm, the cost is more than $217,000 per year, the brief said.

Although Shapiro supports Lee’s appeal, he also argued that the state Supreme Court, if it declares the punishment unconstitutional, should not make its decision retroactive — meaning it should not apply to those already serving the sentence because it would place “substantial and unnecessary burdens on the legal system.”

“This would undoubtedly strain legal resources, requiring revisiting facts of cases that are, in some cases, decades old,” the brief said. “The decision as to how to implement a new constitutional rule should be left to the legislative and executive branches.”

Shapiro argued that parole eligibility for second-degree murder should be determined by the parole board, which already hears cases involving third-degree murder and other serious crimes.

He urged the court to focus its decision in the Lee case on process and not on the facts of whether Lee’s crime warrants a lesser punishment.

“Retroactivity is a question for another day,” according to the brief.

That is exactly how the situation played out nationally in the case of mandatory life prison terms for juveniles.

In 2012, an initial U.S. Supreme Court case, Miller v. Alabama, found that mandatory life for juveniles was unconstitutional, but it wasn’t until 2016, when the U.S. Supreme Court decided Montgomery v. Louisiana, that the decision was made retroactive.

Shapiro’s brief said that the legislature should address the issue with regard to second-degree murder.

“The General Assembly, working with the governor’s office, is the best place to start crafting a solution for this problem,” the brief said. “Legislation can be drafted that addresses the problem, in a manner that can be fairly and expeditiously administrated by the justice system.”

However, Lee’s attorney argues that if Pennsylvania’s Supreme Court does not make its decision retroactive, the 1,041 other defendants serving a life sentence for second-degree murder would immediately file appeals in every county across the commonwealth.

“Making it retroactive would avoid protracted litigation,” Grote said.

But he added that he would welcome the legislature taking action as long as it provides parole eligibility to all such defendants.

Shapiro, who previously served on the parole board as attorney general, argued in his brief that sentencing decisions — including for second-degree murder — should be made by judges with discretion based on the facts of the case and characteristics of the offender.

“Because of the wide range of potential culpable conduct for second-degree murder, justice demands an equally wide range of potential sentences,” the brief said.